On June 14, 2010, Rogers Communications Inc.'s application for leave to appeal an order to grant Bell Aliant LP an interlocutory injunction was denied by the Court of Appeal of New Brunswick.
On May 4, 2010, the New Brunswick Court of Queen's Bench confirmed that the courts can and will grant an interlocutory injunction for a breach of the Competition Act where appropriate, even where the parties are sophisticated players engaging in competitive advertising campaigns. The New Brunswick Court of Queen's Bench granted Bell Aliant an injunction restraining Rogers from claiming that it offers the “fastest and most reliable speed,” “the fastest speed,” or the “most reliable speed” in respect of its Internet service.
Counsel for the plaintiff argued that in light of the launch of Bell Aliant's FibreOP Internet service, providing fibre-to-the-premises connections in Fredericton and Saint John, there was a serious issue to be tried that Rogers's representations were false and misleading and contrary to s. 52 of the Competition Act.
In particular, Justice Judy Clendening of the Court of Queen's Bench noted that Rogers had not tested its system against Bell Aliant's new FibreOP network. “If one advertises itself to be the ‘fastest' or ‘the best, or the most reliable' then on the basis of common sense there should be a preponderance of technical evidence to support this claim.” The judge stated in support of her finding that Bell Aliant had a “strong case.”
The Court of Queen's Bench also agreed that if an injunction was not granted, Bell Aliant would potentially suffer irreparable harm as its damages would be difficult to quantify since “the loss of customers and the potential loss of new customers is ... difficult to assess.”
Justice Clendening also found that the balance of convenience favoured enjoining Rogers pending a trial of the issue, noting that the harm Rogers would suffer “may result from disallowing misleading advertising.”
The Court of Appeal dismissed Rogers's application for leave to appeal the order of Justice Clendening without reasons.
Paul Schabas and Ryder Gilliland of Blake, Cassels & Graydon LLP and John Townsend, QC, David Hashey, QC, and Jade Spalding of Cox & Palmer represented Bell Aliant.
Edward Babin of Babin Barristers LLP and Michael Brenton and Nadia MacPhee of Barry Spalding Lawyers represented Rogers.